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Tuesday, August 18, 2015
Possible Reasons for NJ Sports Betting Delay

Amazingly, we are  still waiting for a decision in the New Jersey sports betting case. If you recall, New Jersey's plan to legalize sports betting is the subject of an ongoing federal court battle playing out before the U.S. Court of Appeals for the Third Circuit. It has been slightly more than five months since the oral argument. Many observers (including me) predicted that the appeal would be decided by May or June, since court statistics reveal that the average time between oral argument and a final decision is 2.7 months. That wait-time has now nearly doubled. I would have expected the Third Circuit to rule by May (or June that the latest) given the absence of any federal constitutional challenges in Christie II (the latest iteration of this controversy). In Christie I, the Third Circuit had to address complex constitutional issues under the Tenth Amendment, the Commerce Clause and the Equal Sovereignty doctrine, and was still able to issue a jumbo 128-page opinion less than three months following the oral argument in that case. By contrast, Christie II is much narrower in scope: the Third Circuit only has to address whether New Jersey’s partial repeal law rises to the level of an “authorization” for purposes of PASPA. There are no constitutional issues. This is a much cleaner opinion to write.

So why the delay then? There may be several factors in play. First, this is an important decision that will have far-reaching consequences. We are talking about the potential nationwide legalization of sports betting. These are big stakes. The Court’s charge is to get it right, not to satisfy any arbitrary deadline. There are a lot of eyes on this case, and many believe that it is ultimately headed to rehearing en banc (and possibly the U.S. Supreme Court), regardless of who wins.  With the prospect of further judicial review a realistic possibility here, it does not surprise me that the Court is taking its time with the decision. No judge wants to be second-guessed. But the delay could also be a sign that this case is not quite the "slam dunk” that many observers originally believed it to be. Oral argument certainly helped New Jersey’s cause (pushing its chances of success to closer to 40%, maybe even much higher), and it may very well be that this case is now “too close to call,” which may explain the delay in the court's decision-making. Could there be a dissenting opinion in the works? Based on the divided oral argument (with Judge Marjorie Rendell seemingly firmly in New Jersey’s camp, or was she just playing devil’s advocate?), it would appear that this case is primed for another dissenting opinion (just like in Christie I).

Or could the delay here just simply be a function of the Third Circuit’s busy workload. Statistics published by the Administrative Office of the United States Courts bear this out. In 2013, when Christie I was decided, the median time for an appeal to be decided (using the filing of the notice of appeal as the starting point) was only 5.9 months. In 2014, that number spiked to 7.1 months (a greater than twenty percent increase), and, in 2015, that number increased further to 7.8 months. So, since Christie I was decided, it is now taking the Third Circuit on average nearly two months longer to decide cases. The current appeal has been pending for only 8 months and 13 days, which is several weeks less than the Circuit average for all of 2015. Thus, the current delay is nothing out of the ordinary.

The complexity of the case is certainly at the crux of it though. As an appellate lawyer, I have seen decisions issued following oral argument in as a few as three weeks. But I have also been part of cases where it took more than one year for a decision to be issued. The wait may soon be over, if the calendar is any indication. As my friend and colleague, Alan Milstein, pointed out the other day, the timing of the opinion may correlate to the employment status of the judicial law clerks (I believe each federal appellate judge gets three). As the judge’s law clerks start departing their clerkships for “greener” pastures around Labor Day, Alan expects to see a flurry of opinions released in the latter part of August, as the departing clerks look to "clear the decks" for the incoming clerks. We could very well see the New Jersey opinion included in this late-August release, particularly if the clerk assigned to write the first draft of the opinion is leaving his or her clerkship at around the same. So, if Alan is right (and never bet against him!), the wait shouldn’t be that much longer.

-- Daniel Wallach


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